The applicable standard of review for human rights complaints and the denial of the opportunity to award costs as a reviewable error

Administrative law – Decisions reviewed – Human Rights Tribunal – Disability – Statutory interpretation – Legislation – Judicial review – Appeals – Standard of review – Correctness – Reasonableness – Costs

Pollock v. Manitoba (Human Rights Commission), [2019] M.J. No. 286, 2019 MBCA 110, Manitoba Court of Appeal, October 28, 2019, B.M. Hamilton, J.A. Pfuetzner and L.T. Spivak JJ.A.

This decision concerned the appeal of the complainants and the cross appeal of the Winnipeg Condominium Corporation No. 30 (the “Condo Corporation”) of the reviewing judge in the Court of Queen’s Bench. The Manitoba Human Rights Commission (the “Commission”) was also a respondent and the Government of Manitoba was an intervenor and respondent.

The complainants had filed complaints of discrimination under the Human Rights Code, CCSM c H175 (the “Code”). They alleged that they had been discriminated against by the Condo Corporation. The complainants claimed that the Condo Corporation had discriminated against them with respect to their decision to replace exterior glass windows with tinted glass, as they alleged that this would further limit their ability to see due to their visual impairments or otherwise affect their disabilities.

Following investigation by the complainants, the Commission referred the matter to the Human Rights Adjudication Panel (the “Panel”). After the Commission determined the matter would go to the Panel, the Condo Corporation offered to remedy each of the complaints in a manner that the Commission deemed reasonable. This offer was rejected by the complainants. The Commission then moved to terminate the proceedings. The Commission argued that section 29(2)(b) of the Code, provided the Commission with the right to terminate the proceedings before and after a complaint was referred to an adjudicator. The adjudicator ruled (the “Carriage Ruling”) that, because the complaints had been referred to adjudication prior to the communication of the offers of settlement that the commission was functus, the hearing of the complaints could proceed, and the Commission was still a party to the adjudication but could withdraw from actively participating in the adjudication. Therefore, the Commission engaged in the proceedings, but in a limited way.

The adjudicator held that the complainants had not established a need for non-tinted windows, nor had they established that the Condo Corporation had a duty to investigate the need. It was also found that the Condo Corporation reasonably accommodated the applicants.

Before the reviewing judge, Manitoba and the Commission were both parties. Manitoba became a party as the applicants raised arguments asserting breaches under the Canadian Charter of Rights and Freedoms (the “Charter”) due to delay. The complainants argued that the Carriage Ruling had wrongly interpreted the Code and that the applicable standard of review was correctness. The adjudicator’s decision was upheld by the reviewing judge as being reasonable.

On appeal, the complainants argued that the reviewing judge should have applied the correctness standard of review for the Carriage Ruling. In the alternative they argued that the standard of review was reasonableness, and that the Carriage Ruling was unreasonable. The Condo Corporation argued that the reviewing judge correctly determined the standard of review was reasonableness and that it was correctly applied. Regarding the delay, the Condo Corporation said that the finding that the complainants had not suffered any prejudice due to the delay which would justify relief was entitled to deference as no palpable or overriding error was made. The Condo Corporation sought a dismissal of the appeal with costs. The Commission similarly argued that the reviewing judge’s decision was correct. The role of Manitoba was minimal as the complainants’ argument at appeal did not involve any argument relying on the Charter.

On appeal it was confirmed that the appropriate standard of review for most decisions of administrative decision-makers, is reasonableness and that the reviewing judge correctly identified that the standard of review for the Carriage Ruling was reasonableness. In her decision, the reviewing judge had correctly identified and applied the modern principle of statutory interpretation. There was no decision regarding delay, as the finding regarding the Carriage Ruling made that decision moot. The complainant’s appeal was dismissed with costs in favor of the Condo Corporation.

The Condo Corporation asserted that the reviewing judge erred in law by denying it the opportunity to be heard on the matter of costs. Although enhanced costs were not awarded, the Condo Corporation was awarded costs both in the Court of Queen’s Bench and Court of Appeal.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Deanna C. Froese at [email protected].

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